United States District Court, D. Hawaii
NAPOLEON T. ANNAN-YARTEY, SR., Plaintiff,
SECURITAS SECURITY SERVICE USA INC.; HAWAII DEPARTMENT OF TRANSPORTATION (AIRPORT DIVISION); DEPARTMENT OF STATE OF HAWAII SHERIFF DIVISION (DIS); STATE OF HAWAII DEPARTMENT OF PUBLIC SAFETY; and DOES 1-10, Defendants.
FINDINGS AND RECOMMENDATION TO: (1) DISMISS FIRST
AMENDED COMPLAINT WITH LIMITED LEAVE TO AMEND; AND (2) DENY
PLAINTIFF'S APPLICATION TO PROCEED IN DISTRICT COURT
WITHOUT PREPAYING FEES OR COSTS
KENNETH J. MANSFIELD UNITED STATES MAGISTRATE JUDGE.
11, 2018, Plaintiff Napoleon T. Annan-Yartey, Sr.
(“Plaintiff”), proceeding pro se, filed
his Amended Complaint (“First Amended Complaint”)
against the following defendants:
(1) Securitas Security Service USA Inc.
(2) Hawaii Department of Transportation (Airport Division)
(“DOT”); (3) “Department of State of Hawaii
Sheriff Division (DIS)” (“DIS”); (4) State
of Hawaii Department of Public Safety (“DPS”);
and (5) Does 1-10 (“Doe
Defendants”). ECF No. 9. That same day, Plaintiff filed
an Application to Proceed in District Court Without Prepaying
Fees or Costs (“IFP Application”). ECF No. 10.
reasons set forth below, the Court FINDS AND RECOMMENDS that
the district court DISMISS Plaintiff's First Amended
Complaint WITH LIMITED LEAVE TO AMEND as discussed below. The
Court also RECOMMENDS that the district court DENY WITHOUT
PREJUDICE Plaintiff's IFP Application.
filed a “Civil Rights Complaint to 42 Section
1983” (“Complaint”) on March 19, 2018. ECF
No. 1. That same day, Plaintiff also filed his first IFP
Application. ECF No. 2. On April 6, 2018, this Court issued
its Findings and Recommendation to: (1) Dismiss Complaint
With Limited Leave to Amend; (2) Deny Plaintiff's
Application to Proceed in Court Without Prepaying Fees or
Costs (“April 6, 2018 F&R”). ECF No. 5. On
May 11, 2018, the district court issued its Order Adopting
Magistrate Judge's Findings and Recommendation
(“May 11, 2018 Order”). ECF No. 8.
May 11, 2018 Order, the district court granted Plaintiff
leave to file an amended complaint curing the deficiencies
outlined in the April 6, 2018 F&R by June 12, 2018.
Id. at 2. The district court also granted Plaintiff
leave to file a second IFP Application. Id.
Plaintiff timely filed his First Amended Complaint and second
IFP Application on May 11, 2018. ECF Nos. 9, 10.
First Amended Complaint
Standards of Review
court may dismiss sua sponte a complaint for lack of
subject-matter jurisdiction. Fiedler v. Clark, 714
F.2d 77, 78-79 (9th Cir. 1983); Belleville Catering Co.
v. Champaign Mkt. Place, LLC, 350 F.3d 691, 693 (7th
Cir. 2003) (“[I]nquiring whether the court has
jurisdiction is a federal judge's first duty in every
case.”); Fed.R.Civ.P. 12(h)(3). “Federal courts
are courts of limited jurisdiction, ” possessing
“only that power authorized by Constitution and
statute.” United States v. Marks, 530 F.3d
799, 810 (9th Cir. 2008) (internal quotation marks omitted)
(quoting Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994)).
bears the burden of establishing subject-matter jurisdiction.
Kokkonen, 511 U.S. at 377. Plaintiff must allege
sufficient facts to show a proper basis for the court to
assert subject-matter jurisdiction over the action. See
Smith v. McCullough, 270 U.S. 456, 459 (1926)
(“The established rule is that a plaintiff, suing in
federal court, must show in his pleading, affirmatively and
distinctly, the existence of whatever is essential to federal
jurisdiction, and, if he does not do so, the court, on having
the defect called to its attention or on discovering the
same, must dismiss the case, unless the defect be corrected
by amendment.”); see also Fed. R. Civ. P.
Screening the complaint
Court must subject each civil action commenced pursuant to 28
U.S.C. § 1915(a) to a mandatory screening, and order the
dismissal of any claims it finds “frivolous, malicious,
failing to state a claim upon which relief can be granted, or
seeking monetary relief from a defendant immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B); Lopez v.
Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
(stating that 28 U.S.C. § 1915(e) “not only
permits but requires” the court to dismiss sua sponte
an in forma pauperis complaint that fails to state a claim);
Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per
curiam) (holding that “the provisions of 28 U.S.C.
§ 1915(e)(2)(B) are not limited to prisoners”).
state a claim, a pleading must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). A complaint
that lacks a cognizable legal theory or alleges insufficient
facts under a cognizable legal theory fails to state a claim.
UMG Recordings, Inc. v. Shelter Capital Partners
LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (citing
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990)). A plaintiff must allege
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see also Weber v. Dep't of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
This tenet -- that the court must accept as true all of the
allegations contained in the complaint -- “is
inapplicable to legal conclusions.” Iqbal, 556
U.S. at 678.
is appearing pro se; consequently, the court liberally
construes the First Amended Complaint. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007); Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam).
The court also recognizes that “[u]nless it is
absolutely clear that no amendment can cure the defect . . .
a pro se litigant is entitled to notice of the
complaint's deficiencies and an opportunity to amend
prior to dismissal of the action.” Lucas v.
Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995);
see also Crowley v. Bannister, 734 F.3d 967, 977-78
(9th Cir. 2013). A court may, however, deny leave to amend
where further amendment would be futile. See, e.g.,
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522,
532 (9th Cir. 2008) (reiterating that a district court may
deny leave to amend for, among other reasons, “repeated
failure to cure deficiencies by amendments previously allowed
. . . [and] futility of amendment”).
Plaintiff's Factual Allegations
First Amended Complaint alleges that, at approximately 3:00
a.m. on July 4, 2017, Plaintiff was at Honolulu International
Airport to board a flight to New York. ECF No. 9 at §
IV, ¶ 17. As Plaintiff was walking with his baggage
towards the ticket counter, a Securitas security guard
(“Securitas Doe 1”) allegedly blocked
Plaintiff's path and asked him to stop. Id. at
¶¶ 18-19. Plaintiff alleges that a second Securitas
security guard (“Securitas Doe 2”) then grabbed
Plaintiff's arm and said, “I am detaining
you.” Id. at ¶ 20.
asked Securitas Does 1 and 2 on what basis they were
detaining him “and what the probable cause
was[.]” Id. at ¶ 21. Securitas Does 1 and
2 did not respond to Plaintiff and, instead, asked if the
bags Plaintiff was carrying belonged to him. Id. at
¶ 22. When Plaintiff said the bags were his, Securitas
Doe 1 asked Plaintiff to hand over the bags for inspection.
Id. at ¶¶ 23-24. In response, Plaintiff
said, “no by law the TSA is the authorized Agency
allowed to search my bags[.]” Id. at ¶
point, Securitas Doe 2 called a third Securitas security
guard to the scene (“Securitas Doe 3”).
Id. at ¶¶ 26- 27. Securitas Doe 3 asked to
see Plaintiff's airline ticket, and Plaintiff showed it
to him. Id. at ¶ 29. Securitas Doe 3 then asked
to inspect Plaintiff's bags, and said he would prevent
Plaintiff from boarding his flight if he did not comply.
Id. at ¶ 30. Plaintiff again refused, and asked
Securitas Does 1, 2, and 3 whether they were authorized by
TSA to inspect his bags. Id. at ¶ 31.
alleges that when he refused to surrender his bags for
inspection, the Securitas Does began beating Plaintiff.
Id. at ¶¶ 33-36. Plaintiff alleges that
“[a]pproximately four Guards jumped him and got on top
of Plaintiff, punching, Kneeing, and kicking”
Plaintiff. Id. at ¶ 41. Plaintiff alleges that
Securitas Doe 3 put Plaintiff in a choke hold. Id.
at ¶ 33. Plaintiff alleges that “Securitas
Security guards used excessive and unreasonable force
against” Plaintiff and “subsequently arrested and
detained him without a probable cause or legal
justification[.]” Id. at ¶¶ 46, 52.
Plaintiff also alleges that Securitas issued a criminal
citation and initiated criminal proceedings against him.
Id. at ¶ 47. Plaintiff alleges that
“[t]he beating and ‘Choke' hold, cause[d]
plaintiff to have heart problems, with head, back and leg
injuries[.]” Id. at ¶ 39. Plaintiff also
alleges that the altercation with the Securitas Does caused
him to suffer “severe emotional distress.”
Id. at § V, ¶ 112.
alleges that Securitas was “hired, contracted, and paid
by [DOT] to provide security services at Honolulu
International Airport.” Id. at § IV,
¶ 55. Additionally, Plaintiff alleges that the Securitas
Does were “acting in the course and scope of their
employment” with DOT. Id. at ¶ 3.
alleges that Securitas “failed to adequately and
properly screen and hire” employees. Id. at
¶ 120. Plaintiff further alleges that Securitas
“failed to act with ordinary care in failing to
properly train and supervise [its] officers with respect to
proper procedures on detention and arrest of citizens . . .
.” Id. at § V, ¶ 117.
First Amended Complaint asserts the following claims against
all Defendants: (1) Count I - Violation of Fourth and
Fourteenth Amendments; (2) Count II - Excessive Force; (3)
Count III - False Arrest; (4) Count IV - False Imprisonment;
(5) Count V - Assault; (6) Count VI - Battery; (7) Count VII
- Intentional Infliction of Emotional Distress; (8) Count
VIII - Negligence; (9) Count IX - Failure to Properly Screen
and Hire; (10) Count X - Failure to Properly Train; (11)
Count XI - Failure to Supervise and Discipline; (12) Count
XIII - Hawaii Civil Rights Violation; and (13) Count XIV -
Punitive Damages. Plaintiff also asserts Count XII against
DPS for municipal liability based on Securitas' ...